Trade mark decision

BL Number

O/352/99

Decision date

8 October 1999

Hearing officer

Mr A James

Mark

'C'

Classes

14, 18, 24, 25, 34

Applicant

Corporation Habanos SA

Opponent

Carreras Limited

Opposition

Sections 5(2)(b) & 5(4)(a)

Result

Section 5(2)(b): - Opposition failed.

Section 5(4)(a): - Opposition failed.

Points Of Interest

• None

Summary

The opponent’s opposition was based on a number of registrations in Class 34 consisting of or incorporating ovals in such marks. It was accepted that the opponent’s best case rested on registration 993195 which consisted of an oval device coloured red and gold.

The opponent filed evidence of use in support of their opposition. They stated from as early as 1920 their cigarette packaging had incorporated an oval device in various colours in relation to a range of cigarettes. Use over the period to date had been extensive. The opponent also filed the results of survey evidence but this was found to be only of limited value since in the first instance it involved only people in the cigarette trade and in the second the results were at best inconclusive.

Under Section 5(2)(b) the Hearing Officer noted that in relation to the applicant’s Class 34 application, identical goods were at issue. In comparing the respective marks the Hearing Officer concluded that the opponents mark was of low distinctive character since oval backgrounds were commonly used in many trades; also the use did not support the claim that the opponent had a monopoly of oval shapes in their marks. Overall he did not consider the respective marks to be confusingly similar and opposition failed on this ground.

As the opponent used their word mark CRAVEN with their oval devices, they were in a weaker position under Section 5(4)(a). Opposition also failed on this ground.